Grand Jury and Indictment
In order to proceed in a case involving a felony, the evidence must first be presented to a grand jury. Grand juries hear evidence presented by prosecutors, and to take various actions regarding the evidence and legal charges they consider. The grand jury can also conduct independent investigations. Grand juries sit for a term of approximately one month.
The grand jury is made up of sixteen to twenty-three people who listen to evidence presented only by the prosecutor and decide whether sufficient evidence exists to indict a defendant on a felony charge; that is, whether the case should proceed to trial. Grand juries also investigate criminal conduct and allegations of a public official's neglect of office or misconduct, and issue reports that may serve as the basis for disciplinary action against the public official.
Grand jury proceedings are secret and closed to the public. However, the defendant has the right to testify before the grand jury with an attorney present and request witnesses to testify on his behalf. Nevertheless, the defendant's attorney is not permitted to speak to the grand jury, object to the prosecutor's questions, or consult or talk with his client inside the grand jury room. The prosecutor is the legal adviser of the grand jury and examines all witnesses who testify before it, including the defendant or defense witnesses. Judges are not present in the grand jury room during proceedings. All witnesses who testify before the grand jury are immune from prosecution, unless they sign a waiver of immunity. A witness who has signed a waiver of immunity has the right to have an attorney present in the grand jury room under the same conditions as a defendant's attorney.
Grand Jury Decisions
At least sixteen grand jurors must be present in order to hear evidence and take action. If at least twelve grand jurors determine that there is enough evidence to send the case to trial, an indictment will be filed containing the felony charges voted on by the grand jury. The grand jury may instead decide that there is insufficient evidence that a felony was committed, but that there is sufficient evidence that a misdemeanor was committed. In that case, the grand jury may reduce the charge and direct the prosecutor to charge the defendant with a misdemeanor. If there is not reasonable cause to believe that the defendant committed any offense, the court must dismiss the charges and release the defendant from custody. This is called voting a no true bill.
Waiver of Indictment
The defendant can waive his right to a grand jury hearing. This is known as a waiver of indictment. In that case, the prosecutor will file a Superior Court Information (SCI) which is a written document containing the felony (and, in some cases misdemeanor) charges against the defendant. A SCI has the same force and effect as an indictment.
If the defendant is indicted by the grand jury, a second arraignment must take place in the Criminal Term of the Supreme Court where the felony case will be tried. Similar to the initial arraignment, the defendant is formally informed of the charges contained in the indictment and he enters a plea of guilty or not guilty. In addition, the conditions of bail may be reviewed and plea-bargaining may take place. If the defendant pleads not guilty, the case will be adjourned and a future court date will be scheduled.